The distinction favorable to the theory of nonliability of counties, as being involuntary subdivisions of the state and carrying on the functions of the state as to local affairs, based on the proposition that the state itself would be immune under like circumstances, is not applicable where the cause of action arose while Mich. Comp. Laws § 13862-26 (supp. 1943) was in effect, which waived the state's immunity in certain cases.
Decedent and defendant county had an agreement by which defendant erected a snow fence on decedent's property during the winter, and then removed it in the spring. While mowing, decedent struck a post from defendant's snow fence that had not been removed, and died from injuries he sustained. Plaintiff, decedent's wife, filed suit against defendant for negligence and trespass for failing to remove the post and therefore causing decedent's injuries. The court dismissed plaintiff's cause of action, ruling that the there was no evidence of trespass, the action was based on negligence, and that the defense of governmental immunity applied. On appeal, the court reversed.
Can a party bring a cause of action against defendant county for a continuing trespass?
The court reversed, holding that plaintiff stated a cause of action against defendant for negligently causing decedent's injuries, and defendant was not entitled to raise the defense of governmental immunity. For the distinction in the liability of cities, villages and townships on the one hand and that of counties on the other, on grounds of governmental immunity, defendant cites Maffei v. Berrien County, 293 Mich. 92, and other cases. However, at the time of the accident to decedent in this case, July 23, 1945, there was still in effect Act No. 135, § 24, Pub. Acts 1939, as amended by Act No. 237, Pub. Acts 1943 (Comp. Laws Supp. 1943, § 13862-26, Stat. Ann. 1943 Cum. Supp. § 27.3548 ) (though repealed as of later effect by Act No. 87, Pub. Acts 1945 [Comp. Laws Supp. 1945, § 13862-26, Stat. Ann. 1946 Cum. Supp. § 27.3548 (41) et seq. ]). We should not overlook our decision in Benson v. State Hospital Commission, 316 Mich. 66, 82. The distinction favorable to the theory of nonliability of counties, as being involuntary subdivisions of the State and carrying on the functions of the State as to local affairs, based on the proposition that the State itself would be immune under like circumstances, has no applicability to the instant case, where the cause of action arose while the act of 1943 was in effect, which act waived the State's immunity in certain cases.